• Non consummate marriage

Marriage has not been consummated ,the husbands file petition for divorce on the ground of cruelty n desertion,cruelty being denial of sex .in her cross she accepts marriage unconsummated but levels allegation of impotency that because of husbands impotency marriage was not consummate.The same is the allegation of husband that because of refusal of sex by wife marriage never got consummated hence cruelty n seeking divorce.
Now when admittedly she says marriage unconsummated and contesting divorce filed by husband .
What should be next line of action of husband
Is it not that when both are admitting that marriage is not consummated then can court nullify the marriage on its own.
The wife never filed a case of annulment but alleges impotency of husband to be the reason of non consummated marriage.
The wife now moved an application to conduct impotency test on husband ,though its husband petition for divorce on ground of cruelty n desertion and the issues were framed on these grounds.
Can the wife file for impotency test to be conducted without moving an application for annulment owing to husbands impotency when she is respondent in the divorce petition filed by husband on the ground of cruelty and desertion .
Will the husband has to go through harassment of going thru an impotency test.
What should the husband do know.
Asked 4 years ago in Family Law
Religion: Hindu

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23 Answers

Actually, when wife alleged impotence on husband which is not true, she is signalling to him that she doesn’t want to come back under any scenario.

The court would not allow as there is no need to go for any potency test or any such thing.

If wife has made this allegation in any open forum, social media like Facebook, Twitter, Whatsapp etc and it has spread all around, then you may have to seriously consider filing defamation and damages at some point of time.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Hi,

You may have to go for test or you may deny. It depends on you. Court can't force for the test.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

If she has admitted marriage is not consumated there is no need for court to appoint any person to do potency test. If she has filed any application just resist the same. Also since it is your petition to seek for divorce and she has made allegations that itself can be ground for granting divorce. Also submit before court that since she has admitted that marriage is not consumated on that ground a judgment can be passed.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. Husband has filed his petition, so he has to prove his case. There is a difference between wilful non-consummation of marriage and non-consummation due to impotency.

2. Wife stating in her cross that marriage could not be consummated due to the impotency of husband lends no help to the cause of the petitioner.

3. The application of wife is not maintainable as cause of action of the husband is not impotency. If wife files a petition for annulment then she can file the application.

4. Unless the husband has sought the relief of annulment the court cannot annul the marriage in a divorce petition.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. The case is at trial stage. On the basis of admission of party the court can pass grant decree on admission as provided for under Order 12 Rue 6 of CPC .

\2. However since this admission was made in evidence and not in pleading the court may wait til end of trial which is nearby to pass its judgement.

3. If the fact of impotency is not denied by husband then the court will not allow such tests.

4. As the fact of consummation of marriage is proved and if there was an alternative prayer for ' nullity of marriage' is also there then the court can reject such application for testes.

5. otherwise the court will allow impotency test.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1) husband has to undergo potency tests to prove he is not impotent

2) wife can make application to direct husband to undergo potency tests

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Court would grant you divorce if you are able to price allegations made in divorce petition

2) by undergoing potency tests you would be able to prove that you are not impotent

3) wife making false allegations that husband is impotent amounts to mental cruelty

Ajay Sethi
Advocate, Mumbai
87973 Answers
6207 Consultations

5.0 on 5.0

Sir in the divorce case the wife to contest against allegation of cruelty has leveled against husband the allegation being impotent so that divorce in proceeding on cruelty is not granted. Court will suo Moto just non consummation of marriage will not nullify the same.

If the court accepts the application filed by wife husband has to go through the test or contest the application or will be better to go for test and prove her wrong and that will make case strong.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

This is not the case the divorce or annulment are not granted on fact that marriage is non consummated response has to be noted for same.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If husband passes in the potency test and non-consummation due to impotency is the only ground placed for seeking annulment of the marriage

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Court would not grant decree of annulment in a divorce petition. If you want to get your marriage annulled will have to withdraw the divorce petition and file a fresh annulment petition.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

The admission of non consumer shion of marriage is not enough in this case as wife says the confirmation was not possible because of the importance of the husband so in this case husband has to prove after the court orders that he is able to perform sex and he is not important.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

As the application for test is moved to court, court after considering all fact may grant it or reject it too. Its solely court's discretion. You can defend yourself on that point because it comes under your right to privacy.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

Firslty, as per e information mentioned in the present query, makes it clear that for a reason that you have filed divorce petition on the ground of cruelity being marriage remain non consummated, now she has raised the issue of impotency just to prove that you are at fault.

Secondly, if she says yes that she is at fault then she may not get anything in terms of money from you.

Thirdly, for that reason she has been trying to say that you are impotent, and then she may say cruelity in fact on her not on you, so that she may get alimony from you.

I advice you to go for the test to prove her wrong, and get out of this marriage.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Dear Sir,

Non consummation of marriage entitles you to get divorce. Supreme Court Says, "Spouses owe rights and duties to each other and in their relationship they must act reasonably."

A petition for divorce under Section 13 (1)(1-a) and (iii) of the HMA on the ground of cruelty as well mental disorder.can be filed by you.

The Court observed, “Undoubtedly, not allowing a spouse for a long time, to have sexual intercourse by his or her partner, without sufficient reason, itself amounts mental cruelty to such spouse. A Bench of Three Judges of this Court in Samar Ghosh Vs. Jaya Ghosh (2007) 4 SCC 511 has enumerated some of the illustrations of mental cruelty.”...

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Q. Is it not that when both are admitting that marriage is not consummated then can court nullify the marriage on its own?

Ans. No! That's not how it works, unless the other side conceded to your prayer.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

When both accept that marraige is consumated annulment can be granted , but if question of issue arises ,then it may proceed for tests like impotency etc

Anand Shukla
Advocate, New Delhi
666 Answers
14 Consultations

4.9 on 5.0

A family court is empowered to order a person to undergo a medical examination and their failure to undergo such test is likely to give rise to an adverse inference against them under Section 114 of the Evidence Act. Please see Sharda v. Dharmpal, (2003) 4 SCC 493.

There is one caveat, though: There can be no roving enquiry by the court. There must be a strong prima facie for it to order such a test. It is not clear if this is the case here. The ordering of the test can be challenged if it appears to be unnecessary on the face of it.

While impotence is indeed a ground of annulment, it is not obligatory for the other person to seek such annulment. If they want to live with their spouse despite their alleged sexual problems, there is nothing stopping them to. In fact, the wife can even refuse to live with the husband on account of the latter’s impotence and yet demand maintenance (https://indiankanoon.org/doc/1317023/).

If the test is no more than a nuisance to the husband, I would personally advise the husband to go through with it. Not doing so is likely to invite an adverse inference from the court. On the other hand, a favourable test will put his case for divorce beyond doubt.

Granted, both agree that the marriage remains unconsummated, but the wife is saying it’s because of the husband’s impotence. Annulment can only be at the instance of the non-impotent party (presuming what the wife is saying is indeed true).

I hope that answers your question. Follow-up queries welcome.

Pulkit Chandna
Advocate, New Delhi
193 Answers
5 Consultations

4.9 on 5.0

I forgot to add that the Hindu Marriage Act specifically provides under Section 23 that for any relief to be granted the Court has to be satisfied that the petitioner is not trying to take advantage of his or her own wrong or disability. This is a legal doctrine of sorts as well in that there is a general expectation that nobody should benefit from his own mistake or deficiency. I hope you have the necessary clarity now.

PS: Thank you for your feedback!

Pulkit Chandna
Advocate, New Delhi
193 Answers
5 Consultations

4.9 on 5.0

Annulment is a legal procedure for declaring a marriage null and void. A marriage can be declared null and void if certain legal requirements were not met at the time of the marriage. If these legal requirements were not met then the marriage is considered to have never existed in the eyes of the law. This process is called annulment. It is very different from divorce in that while a divorce dissolves a marriage that has existed, a marriage that is annulled never existed at all.

One of the Conditions of the annulment of the marriage is no sexual relationship has occurred between the husband and wife called as non consummated.The marriage implies an implicit right to conjugality or consortium or Sexual intercourse. Right of consortium implies the corresponding duty of each spouse to cohabit with the other. The mutual right to several intercourse(s) continues throughout the entire period of marital life.

Consummation means Vera Copula or Conjunction of two bodies or sexual intercourse between the two -husband and wife. Vera copula consists of erection and intermission or penetration.

Full and complete penetration is essential and, as such, partial intercourse will not amount to consummation. Although complete intercourse does not mean partial or imperfect intercourse but every degree of imperfection does not deprive of its essential character. No doubt, degree of imperfection differs in each case nevertheless if "it is so imperfect so as to be natural it is, in law, no intercourse at all.

For non consummation of marriage in your case the husband can say it on oath, get some witness to who he informed the absence of any sexual relationship with wife after the marriage.

The impotency has to prove it by sufficient medical evidence, for which may be required to undergo medical examination by qualified medical practitioner who will report about your potency or impotency that will be evidence about her second charge about being impotent.

Even if the first part of none consummation of marriage i.e. lack or Sexual relationship between both of you are presumed to exist, the second part is more important to prove in the court by the medical evidence that none consummation of marriage was due to 'tour impotency' if this part is not proved, her charge fails & she cannot be granted decree of nullity on this ground.

A person may be disabled mentally or physically for some other activity of life will not mean the person is disabled for sexual activity. Very cleverly her lawyer has drafted this petition to misguide the court by using mental & physical disability but now it all depend how your lawyer draft reply for this.

Try for a mediation and settle if possible other wise contest the case properly

Ajay N S
Advocate, Ernakulam
3991 Answers
93 Consultations

5.0 on 5.0

What should be next line of action of husband

He has to proceed with his case concentrating on his own pleading seeking relief.

Is it not that when both are admitting that marriage is not consummated then can court nullify the marriage on its own

If the petitioner is seeking dissolution of marriage, then the court cannot nullify the marriage.

Mere admission of the allegation that the marriage was not consummated cannot authorise to court to grant a different releif which was not sought by the parties to the case.

Since this is a contested divorce case, the court will hear both the sides and then decide the case on the basis of merits on either side as per law.

The wife now moved an application to conduct impotency test on husband ,though its husband petition for divorce on ground of cruelty n desertion and the issues were framed on these grounds.

She can very well move any petition for this because it is her right to defend her interests, however the husband has rights to deny to undergo such tests, if he feels that it would be embarrassing him.

This is part of trial proceedings hence you cannot claim that the case has to be proceeded in the manner and desire you may choose, law is common for all.

Can the wife file for impotency test to be conducted without moving an application for annulment owing to husbands impotency when she is respondent in the divorce petition filed by husband on the ground of cruelty and desertion .

Yes, she can very well file any such application, filing a petition seeking annulment of marriage is not a criteria or a rule or a provision of law for this.

It is her own right to protect and defend her interests.

Will the husband has to go through harassment of going thru an impotency test.

What should the husband do know.

The husband can refuse to undergo any such tests saying that he never asked for annulment of marriage on the grounds of non-consummation of marriage owing to her impotency, the non-consummation of marriage is another form cruelty, hence the chief divorce grounds are cruelty and desertion, moreover court cannot force him to undergo such tests against his willingness..

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

When both admit that marriage is not consummated,can the court take the decision of annulment.or that both have inflicted cruelty upon each other so divorce should be granted.

Do not create or imagine your own law to interpret the situation.

The allegations and denial are part of the trial proceedings, as well as mere admission of non-consummation of marriage cannot be said to have admitted his all other allegations against her therefore be aware that the case has to undergo trial as per procedures and provisions of law in this regard.

T Kalaiselvan
Advocate, Vellore
78131 Answers
1543 Consultations

5.0 on 5.0

If both the parties agree that there has been no consummation then the court can pass a decree of annulment

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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